JIYAJEERAO COTTON MILLS LTD. Vs. GOKULCHAND PANDE S/O. BRIJ LAL
LAWS(MPH)-1955-9-13
HIGH COURT OF MADHYA PRADESH
Decided on September 30,1955

JIYAJEERAO COTTON MILLS LTD. Appellant
VERSUS
Gokulchand Pande S/O. Brij Lal Respondents

JUDGEMENT

Dixit, J. - (1.) THE only question that arises for determination in this revision petition is as to the Court -fees payable in a suit to recover possession of the property from a licensee. The Plaintiff -Applicant has paid Court -fees on the amount of maintenance charges on the house to which the suit relates payable for one year at the rate of Rs. 8/ - per month by the licensee. The lower Court has held that the Plaintiff's suit is not a suit by a landlord for the ejectment of his tenant but that it is a suit for the possession of the property and that, therefore, the Plaintiff is bound to pay Court -fees on the market value of the house.
(2.) IN this revision petition Mr. Shivdayal learned Counsel for the applicant urges on the authority of - 'Ramraj Tewari v. Girnandan Bhagat' 15 All 63 (A); - 'Mt. Barkatunnisa Begum v. Mr. Kaniza Fatma' : AIR 1927 Pat 140 (B) and - 'Basiram v. Ganeshchandra', 24 Cal WN 167 (C) that in a suit for possession of a property from a licensee, the subject -matter of the suit is the right to eject the Defendant and the value of that right is the value at which the Defendant's right to remain in the house under the license of the Plaintiff may be valued and that, therefore, the valuation put by the Plaintiff -Applicant on the right to eject the Defendant is a proper one. I am unable to accede to the contention. Section 4(XI). Indore Court -fees Act corresponding to Section 7(XI), Indian Court -fees Act deals with Court -fees payable in suits between a landlord and a 'tenant. This provision does not in terms apply to a suit for possession of a property from a licensee. The distinction between the relationship of a landlord and a tenant and that between a licensor and a licensee is too well -known to require any exposition or emphasis here. The mere fact that the Defendant non Applicant agreed to pay to the Petitioner maintenance charges in respect of the property at the rate of Rs. 8/ - per month does not make him a tenant of 'the applicant. In fact it is not the case of the Petitioner that the Defendant is his tenant. The Petitioner was, therefore1, not justified in valuing his suit for purposes of Court -fees on. the principle applicable to a suit of a landlord for the ejectment of his tenant. The argument of the learned Counsel for the Petitioner that the subject -matter in the suit was not the house itself but the right to eject the Defendant and that the value of, that right was the value at which the Defendant's right to remain in the house under the license of the Plaintiff might be valued, is equally untenable. The decision cited by the learned Counsel no doubt support the argument. But I find it difficult to appreciate the view taken in those cases. To me it appears that to say that in a suit such as the present one the subject -matter of the suit is not the property itself but the right to eject the Defendant, is to confuse the subject -matter of the suit with the object of the suit. The ejectment of the Defendant or the possession of property from him is the object of the suit. Its subject -matter is clearly the property itself. That this is the correct view is plain enough from Section 4(v), Indore Court -fees Act (which corresponds to Section 7(v), Indian Court -fees Act, 1870) which says that an suits for the possession of land, houses, and gardens, the Court -fee payable is according to the value of the subject -matter and such value shall be deemed to be, where the subject -matter is a house, the market value of the house. This provision of the Court -fees Act shows in clear terms that the subject -matter of a suit for the possession of a house or property is the house or property itself and not something else. I am, therefore, clear in my mind that where in a suit for possession of a house the Plaintiff claims that the Defendant in possession is his licensee, the Court -fee is payable under Section 4(v), Indore Court -fees Act according to the market value of the house. The point is already covered by a decision of this Court in - 'Martandrao v. Tarabai', AIR 1952 Mad 123 (D), where Mehta J., following the decisions in - 'Ratilal v. Chandulal' : AIR 1947 Bom 482 (E). and - 'Satish Kumar v. Sailabasini Devi' AIR 1949 Cal 621 (F), took a view similar to the view I have taken. The Bombay and Calcutta High Courts did not accept the view taken in, 15 All 63 (A) : AIR 1927 Pat 140 (B), and, 24 Cal WN 167 (C). I do not think I can usefully add anything to what the learned Judges of the Bombay and Calcutta High Courts said while expressing their dissent from the cases on which reliance has been placed by the applicant here. I may, however, add that the Madras, Nagpur and Mysore High Courts have also ruled that in a case of this kind the Court -fee has to be paid on the market value of the property of which the possession is sought (See - 'Nidugonda Rudramani v. C. Srisailam' : AIR 1954 Mad 200 (G); - 'Gajanan Nanaji v. Rajeshwar Krishnaji', AIR 1950 Nag 237 (H); and - 'Jamila Bi v. Mahboob Bi', AIR 1955 Mys 98 (I).)
(3.) THE order of the learned Civil Judge is, therefore, correct and this revision petition is dismissed without any order as to costs. The Petitioner is given one month's time from the date of this order for payment of the deficit Court -fees, if it has not been already paid.;


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